The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, and 112 were read on this motion for DISMISSAL. DECISION + ORDER ON MOTION Upon the foregoing documents, it is hereby ordered that plaintiff’s motion to dismiss defendant’s counterclaims and affirmative defenses is granted in part and denied in part, based upon the following memorandum decision. Background In this declaratory judgment action, plaintiff North American Elite Insurance Company (“plaintiff”) seeks a declaration that there is no coverage under various provisions of the insurance policy it issued to defendant Mac Parent LLC (“defendant”), for defendant’s asserted losses due to physical alterations to defendant’s various restaurant locations occasioned by the Executive Orders issued in response to the coronavirus pandemic. Plaintiff also alleges a breach of contract due defendant’s actions in preemptively suing plaintiff in Illinois State Court, in violation of the venue, choice of law, and jurisdiction provisions of the insurance policy. Defendant, in its answer and counterclaims, seeks a declaratory judgment that “the Shutdown and Partial Reopening Executive Orders caused direct physical loss or damage to [defendant's] insured properties” (NYSCEF Doc. No. 47, 125). Defendant also asserts counterclaims for breach of contract and unjust enrichment due to plaintiff’s failure to provide coverage under the policy. Plaintiff now moves, pursuant to CPLR 3211, to dismiss the counterclaims, as well as defendant’s affirmative defenses. Pursuant to a “Leading Edge All-Risk Form” insurance policy, plaintiff provided insurance to defendant for “all risks of direct physical loss or damage to INSURED PROPERTY while on INSURED LOCATION(S) provided such physical loss or damage occurs during the” policy term (NYSCEF Doc. No. 75, SP 10 561 1117 at 1, §A[1] [emphasis added]). More specifically, the policy “insures TIME ELEMENT loss, during the Period of Liability directly resulting from direct physical loss or damage insured by this POLICY” (id. at 30, §V[A][1]). The Period of Liability is defined as the period of time “starting on the date of physical loss or damage insured by this POLICY to INSURED PROPERTY; and ending when with due diligence and dispatch the building and equipment could be repaired or replaced…and made ready for operations” (id. at 32, §V[D][1][a]). This coverage also includes any “actual not suspected presence of COMMUNICABLE DISEASE” at one of defendant’s locations where access thereto is “limited, restricted or prohibited by an order of an authorized governmental agency…or a decision of an Officer of [defendant]” (id. at 38, §V[H][8]). Communicable disease is defined as “Disease which is transmissible from human to human by direct or indirect contact with an affected individual or the individual’s discharges, or Legionellosis.” As with countless other businesses, defendant’s restaurant locations were adversely affected by the coronavirus pandemic. Specifically, as a result of the shutdown and partial reopening orders issued by the Governor’s office (9 NYCRR 8.202.1; 9 NYCRR 8.202.3; 9 NYCRR 8.202.38; 9 NYCRR 8.202.39), defendant asserts it was required to reduce service, and then to make extensive changes to the physical layout of its restaurants (NYSCEF Doc. No. 47,
98, 106). These changes have led to reduced capacity and square footage available for service, to the extent that as of the date of defendant’s answer and counterclaims, defendant asserts that it is not currently operating any locations in New York State (id.,
